Legal Guide

All About Adultery Laws in India

by Bhavya Choudhary · 4 min read

Adultery laws

Introduction

Marriage is a bond based on loyalty, faithfulness, compassion, and commitment. Indians value their relationships and give them a sacred form with rituals and ceremonies to gain happiness and togetherness. If any of the partners who are in a relationship commits some form of adultery or similar actions, they break trust and paramountcy.

What is Adultery?

  • A man or a woman who is already in a committed relationship of marriage having extramarital intercourse with some other person, either married or unmarried, is called adultery.
  • Any kind of physical relationship with another man or woman while being in married status is wrong and considerably an objective subject in society as it questions morality and religion. 
  • It was legally prohibited in adultery laws before the notice was passed, and adultery was not a crime anymore, where only men were termed as the ones who initiated such acts.
  • However, it is still a ground for divorce as per adultery laws and can be used for separation and legal divorce. 
  • As per section 497 of the Indian penal code of 1860, an act that involves a man or woman committing voluntary extramarital intercourse is subject to a criminal offense under adultery. 
  • The individual under adultery laws can be imprisoned for five years or more with a fine that will be added to the charges. 
  • It was only after “Joseph Shine,” residing abroad, filed a Public Interest Litigation under Article 32 of the Constitution of India, which challenged the adultery laws of India.
  • The apex court passed the judgment after that, and it took down the criminal offense charges from adultery laws because it was a violation of women’s rights and dignity as they were subjectively treated as the property of husbands.
  • It exists as a divorce ground in Hindu and Muslim laws(personal). There still are legal remedies for spouses where their partners are involved in immoral activities, and they need to understand what legal action can be taken.
  • The grieving partner can take legal advice for their situation before filing a divorce petition or a complaint.

Decriminalization of Adultery Laws in India

  • On 2018 27th July, the apex bench consisting of five judges of the Supreme Court ruled out and down Section 497 under the Indian penal code Section 198(2) of the Criminal procedure code as a violation of Articles 14, 15 & 21, which was formed by the Constitution of India. 
  • It was because of Joseph Shine, a Keralite who is a non-resident. He filed litigation under the Public Interest on Article 32 of the Indian constitution for offensive adultery laws and their constitutionality. It also includes Section 497 of the IPC and Section 198(2) of the Cr. P.C, which is contextual to marriage offenses.
  • During the judgment, it was found that the Section was a violation of Article 14, which states equality between men and women, where the section only affects men and not women as per adultery laws.
  • In Article 15, it is a violation of a single gender as only the husband is the aggrieved party and not the wife.
  • Violation of Article 21 where it is dealing with protecting liberty and life, and section 497 is indulged in scenarios where women are treated as men’s property under adultery laws.

What Evidence Can a Wife or Husband provide in Court?

As it can be a ground for divorce and not under adultery laws, certain evidence and proof of immoral actions need to be given to the Hon’ble court so that they can pass the final verdict according to the circumstances. 

These proof pieces can be:

  • Evidence that can be circumstantial as solid evidence and directly adultery law violation is hard to obtain.
  • Evidence regarding the birth of a child from another man or woman or non-access.
  • House is visiting evidence or records of the other individual. 
  • Contracting a disease from having extramarital intercourse or an STD.
  • Previous proceedings, statements, or admissions.

The person may hire a divorce lawyer to fully understand and evaluate the whole situation before proceeding. They can provide precise legal advice regarding these matters and support throughout the process. 

Steps that can be taken if a Spouse Commits Adultery 

The grieving spouse can take necessary legal action against the other if they are involved in immoral activities under adultery laws which is still a ground for divorce. 

These are as follows:

  • The individual must be fully aware and sure that the act is concerned with adultery laws and the person has committed such acts.
  • They might hire a divorce lawyer and a private detective who can collect information on the cheating spouse.
  • The evidence is discussed with the lawyer as they guide the individual on how to take necessary action on which ground. 
  • If they want to separate and file a divorce, legal advice from a professional will be helpful as it makes things simple and prompt. 
  • The lawyer can arrange for legal notice, and the parties can mutually decide on separation and divorce.

These are the steps that can be taken for using the grounds for divorce as per the adultery laws and using them for divorce or separation in a legal manner.

Any wife performing immortalized acts under adultery laws is not receiving or being entitled to maintenance from her husband. But if the husband commits such an act under adultery laws, the wife is entitled to maintenance. 

Conclusion 

Adultery is no longer criminalized but is used as a ground for divorce by many couples. Different scenarios may arise, and living together is not the only way out. The legal consultancy will help the individual to resolve the matter accordingly. 

The grieving party can hire a divorce lawyer for better understanding and moral support as they can give a detailed explanation about marriage and divorce-related laws.

Bhavya Choudhary

Written by

Bhavya Choudhary

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